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The influence of HR in the disciplinary decision making process

This case reviewed the extent to which once a decision is taken that an investigation into an employee’s conduct is required, an employer should consider who conducts the investigation. This is often an employee’s immediate line manager, but it may also be another officer of the employer. It is normal for the investigating officer to consult their Human Resources department for guidance in this process.

The legal background is that to establish a fair dismissal on the grounds of conduct, it must be established at the time of dismissal that:

the employer believed the employee to be guilty of misconduct;

the employer had reasonable grounds for believing that the employee was guilty of that misconduct;

having formed that belief on those grounds the employer had carried out as much investigation as was reasonable in the circumstances.

The case

Mr Ramphal was employed by the Department for Transport (DFT) in a position which required him to spend a significant amount of time on the road. He was entitled to a hire car and had a company credit card with which to pay for that car, fuel and other expenses. Using the credit card for personal expenditure was prohibited and there were limits on the subsistence to which he was entitled when close to home. His expenses were investigated in June 2012 and concerns were raised over excessive petrol use, use of the hire car for personal reasons, and suspicious purchases. The DFT appointed Mr Goodchild to carry out an investigation who acted as both the investigatory and the disciplinary officer. He had not previously acted in disciplinary proceedings so he met with HR officers, familiarised himself with the DFT’s disciplinary procedure handbook, and, in particular, noted the distinctions between misconduct, gross misconduct and the appropriate penalties. A disciplinary hearing took place on 13 August 2012.

On 11 September 2012, Mr Goodchild sent the first draft of his report to Human Resources. Although this report was partly critical, it contained a number of favourable findings in relation to Mr Ramphal such as the misuse was not deliberate and that explanations given by Mr Ramphal for expenditure on petrol were “consistent” and “plausible”. Mr Goodchild’s recommendation was for a finding of misconduct, with the sanction of a final warning. Six months of communications between HR and Mr Goodchild subsequently led to a complete change of view on his factual findings and recommendations as to sanction. Over the course of the various drafts and suggested amendments by HR, “favourable comments were removed and replaced with critical comments, the overall view of culpability becomes one of gross negligence and the recommendation of sanction becomes summary dismissal for gross misconduct instead of a final written warning”. Mr Ramphal was dismissed, and brought a claim in the employment tribunal for unfair dismissal. An employment judge concluded that the decision was based upon as much investigation as was reasonable in the circumstances and that the decision to dismiss was within the band of reasonable responses open to a reasonable employer i.e the reason being dishonest use of the corporate credit card. The employment judge held that the decision was ultimately made by Mr Goodchild, and that he did not appear to be “much influenced” by the input of HR.

Mr Ramphal appealed to the EAT which considered the extent to which the decision to dismiss, taken by Mr Goodchild, may have been improperly influenced by HR. It referred to the Supreme Court case of Chhabra v West London Mental Health NHS Trust [2013] UKSC 80 (which the employment tribunal had not referred to) on the extent to which a Human Resources department can permissibly influence a disciplinary investigation. In Chhabra it was held that there was no impropriety in an investigator seeking advice from an employer’s human resources department on questions of procedure or for an HR department to assist a case investigator in the presentation of a report, for example to ensure that all necessary matters have been addressed and achieve clarity. However, in that case alterations had been made to an investigatory report that went beyond clarification, so the report was no longer truly the product of the investigating officer.

The EAT allowed the appeal, setting aside the decision on unfair dismissal, and remitting the case back to the employment tribunal to consider again in the light of Chhabra. The EAT found the dramatic change in Mr Goodchild’s approach after intervention by HR was “disturbing”, and HR had clearly involved themselves in issues of culpability, which should have been reserved for Mr Goodchild. The changes were so striking that they gave rise to an inference of improper influence and the employment judge should have given clear and cogent reasons for accepting that there was no such influence. No new evidence had come to light that might explain Mr Goodchild’s change of heart. The EAT considered that an Investigating Officer is entitled to call for advice from HR; but HR must “limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction as to appropriate findings of culpability insofar as the advice went beyond addressing issues of consistency. It was not for HR to advise whether the finding should be one of simple misconduct or gross misconduct”.

What to take away

This case assists employers and employees with helpful parameters as to the involvement and influence HR should have in disciplinary matters. It is clear that HR should limit its advice to questions of law, procedure and process and avoid straying into areas of culpability. Neither should it advise what an appropriate sanction should be, except for addressing issues of consistency. For an HR department to influence the outcome of an investigation could mean undermining the fairness of the investigation process and result in a dismissal being unfair.

Compare jurisdictions: Employment & Labor: International

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